Saturday, May 31, 2008

More From Grits on the Texas Mormon Children

If you have been Walthered, I would like to know about it. Please contact me through comments on this site or email me.

If you want to know more about what this new verb, Walthered, means (and how it originated), link to Grits, Scott Henson's great Texas blog. The comments on his post are juicy, ripe for action, and will give you a spicy taste of attitudes prevailing in Texas-style justice and politics.

Grits's searing coverage, updated with every new develoment, is the best I've seen.

Good question: why did the lefties initially support the raid and "conservatives" not do so. I was aghast from the beginning, and consider myself a convert to the left after having flirted with the right in my youth. A recent series of Presidential blunders have turned me away from the right wing party in this country forevermore.

Independently of my political pieties, I was aghast because I know first hand what it is like to be separated both from your parents, and from your children. I've seen it from both ends, unfortunately. I'm not necessarily in favor of bigamy or underage marriage. I just had a hunch Texas CPS had bitten off a little more than could be chewed, comfortably. Now, we'll get to see how national attention could possibly have an effect upon this particular area of what they call family law in this state.

You gotta love Scott's new slogan for CPS: No Child Left With Mom (!!!)

Grits on FLDS Children Takings

Thursday, May 29, 2008

Prison Conditions and Other Petitions to Watch

You won't appreciate the facts alleged in this Bivens (Sec. 1983) case (on the list of petitions to watch at SCOTUSBLOG) unless you have seen the insides of our prisons.

At this link is the tail end of at least one more interesting action making it onto the list, involving removal of children from families and parental rights, that has been ongoing for ten years in Illinois (Dupuy, et al. v. McEwen).

Sunday, May 25, 2008

Habeas and Sentencing

For those who haven't yet discovered the exciting world of habeas, here is a brief intro:
The quintessential example of a claim within the core of habeas is a challenge to the validity of the prisoner‟s conviction or sentence, that is, a claim that the police, the prosecutor, the defense lawyer, the jury, or the court made a constitutional error resulting in an unlawful conviction or sentence.
A prisoner challenging the conditions of confinement, on the other hand, is permitted to bring suit under § 1983.
At this link is an article in which a whole new world of habeas seems to have been rediscovered. In which the Preiser doctrine is turned on its head for good reason. I'm also stunned to see how clearly the authors show that federal judges get it wrong, (on at least two occasions) at pp 18-19. Demonstrating splits in the circuits here is also helpful.

The recommendation splitting sentence admin claims from other categories makes much sense; federal courts are likely to find it very helpful. That further deference is suggested for reviewing state court decisions where state judicial review avails is problematic. The problem of reviewing parole and disciplinary cases remains a daunting, growing, task. Deference only gives state reviewing courts the first opportunity to ignore (sweep under carpet) the valid federal claim. Having said this, AEDPA and PLRA are both legislative mistakes making it only easier to ignore valid claims. The consequences of this will continue to be evident as the prison population grows by leaps and bounds, as a toll on those unfortunate enough to be swept into the dragnet, their families, friends and acquaintances. Policies making it easier to convict and harder to undo wrongful convictions should be viewed with very critical eyes.

I hope after Doc Berman has a read on it he'll post his take. Following is a snippet from the paper by NANCY J. KING Vanderbilt University School of Law and SUZANNA SHERRY Vanderbilt University Law School :
Before 1972, it was not clear whether sentence-administration decisions by state corrections and parole officials were subject to constitutional regulation at all. In that year, the Court held in Morrissey v. Brewer that a parolee does have a liberty interest in his continued release on parole, which cannot be revoked without due process.5 In 1974, in Wolff v. McDonnell,6 the Court extended Morrissey to decisions that deprive d inmates of good-time credits and thus delayed the date of presumptive release. Five years later in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex,7 the Court recognized a liberty interest in the denial or delay of parole, if the state parole system created an entitlement to a parole hearing after a set amount of time served. In particular, the Court held in Greenholtz that a state‟s decision to deny parole must meet minimum due process standards.8 These cases made it possible for state prisoners to raise constitutional challenges to sentence-administration decisions that had previously been unregulated by federal law.
Here are several of the more controversial statements, with which I tend to agree wholeheartedly, to be viewed critically by a trained eye:

The Court‟s expansion of the liberty interests of prisoners, the shift away from discretionary to
mandatory release laws, and the early decisions in Preiser and Wolff were not the only developments that contributed to an increase in the number of prisoners seeking habeas relief for sentence-administration claims over the past thirty years.

Once Edwards was combined with the changes in sentencing and release law described above, it ultimately channeled many sentence-administration challenges into habeas. But there was yet another development, almost simultaneous to the doctrinal change worked by Edwards, which has turned an unfortunate situation into an intolerable one.

in the years leading up to passage of the Act there is no sign in the legislative history that lawmakers anticipated the application of the new provisions to attacks by non-capital state prisoners on administrative decisions that affected the timing of their release from prison.

In general, the law recognizes (1) that similar claims by state and federal prisoners are treated similarly in terms of access to judicial review; (2) that federal courts are more reluctant to interfere with the judgments of state courts than with the actions of other, non-judicial state actors; and (3) that deprivations of physical liberty are the most egregious invasions of liberty.

Wilkinson further complicates the problem, because almost every case can be described both as satisfying and as not satisfying the Wilkinson standard: If the prisoner wins his procedural challenge, it means both that the first hearing was constitutionally invalid (and thus that the result of the hearing was invalid) and that the plaintiff is entitled to a new, constitutionally adequate, hearing.90

when states choose not to authorize judicial review, federal
oversight of the decisions made by their prison and parole officials will be more
exacting than it would have been had the state provided judicial review.

UPDATE: this SSRN piece is still in draft stage.

Sunday, May 18, 2008

Grits on the FLDS Children,Takings and Prosecutions

Just a sample from Texas of the FLDS case(s), by Grits:
I have no idea what's being said in those interviews, but IMO CPS is overreaching tremendously to assume law enforcement will get to use that information in any criminal proceedings. By wholesale ignoring the right to counsel for people openly asking for their attorneys, combined with the flimsy totality of the premise of the state's action in the first place, it's a safe bet some judge, somewhere, will toss out big chunks of any criminal case before it ever gets to trial. I'm not a lawyer and couldn't cite to case law, but I'll be surprised if some judge somewhere along the line doesn't agree CPS is acting as law enforcement's stalking horse.

Meanwhile, I'm angered and embarrassed for our state and nation at this news that CPS may tell FLDS parents they have to give up their religion to get their kids back, including kids who no one thinks have ever been abused. These parents are in the same predicament as Abraham in the Bible, ordered by God to slay his son Isaac: Choose between your children and your faith. What would you do?

Saturday, May 17, 2008

How Ideas Happen

In 1999, when Nathan Myhrvold now of Intellectual Ventures, left Microsoft and struck out on his own, he set himself an unusual goal. He wanted to see whether the kind of insight that leads to invention could be engineered. He formed a company called Intellectual Ventures. He raised hundreds of millions of dollars. He hired the smartest people he knew. It was not a venture-capital firm. Venture capitalists fund insights—that is, they let the magical process that generates new ideas take its course, and then they jump in. Myhrvold wanted to make insights—to come up with ideas, patent them, and then license them to interested companies. He thought that if he brought lots of very clever people together he could reconstruct that moment by the Grand River.

One rainy day last November, Myhrvold held an “invention session,” as he calls such meetings, on the technology of self-assembly. What if it was possible to break a complex piece of machinery into a thousand pieces and then, at some predetermined moment, have the machine put itself back together again? That had to be useful. But for what?

New Yorker, May 12, 2008

Friday, May 16, 2008

A Review

A new site, a new book.

Against the Grain

At this link is an opinion being appealed to the Supreme Court by Major League Baseball, and a bunch of other hippo size bodies with brains of peas (I take that back y'all---go ahead and spend money however you want to---I would do the same thing---or maybe not---maybe I grew up---maybe I don't like throwing money into the toilet---who knows...nobody cares), who want to control the use of their own statistics, already public domain stuff, by a fantasy baseball game maker. I wish I had half of the cash the parties have already spent on this lawsuit. I'd settle for a quarter of it. Read more at SCOTUSBLOG'S petitions to watch section.

Wait. I just remembered that running against the grain is how you get things done. So, now when I write my book and talk about the awesome Iron Man playing ball, and how, I need MLBPA permission. Not.

That would make the world a better place, if you're MLBPA. Anyhow,

It sure does make for interesting first amendment reading! There is also an interesting breach of warranty claim discussed in this case. Seriously, a game has entertainment value as art or a novel. If the maker wants to make a few bucks to defray the cost of his game why should we stop that.

I play fantasy yahoo for free and wonder how they do it, keep it free, that is.

This is just another case of the rich bully wanting to take the poor man's toy away. As if it wasn't enough to push the price of gas up to five dollars a quart.

I respectfully beg the Court to deny cert to resolve the issue. Watch out, that's certain to provoke them to grant the petition.

More Common Sense

Link here for this study, thanks to Doc Berman. Laws based on actual fact as opposed to imagined fictions could make the world a better place.

Does Residential Proximity Matter? A Geographic Analysis of Sex Offense Recidivism

Grant Duwe

Minnesota Department of Corrections,

William Donnay

Minnesota Department of Corrections

Richard Tewksbury

University of Louisville

In an effort to reduce sex offense recidivism, local and state governments have recently passed legislation prohibiting sex offenders from living within a certain distance (500 to 2,500 feet) of child congregation locations such as schools, parks, and daycare centers. Examining the potential deterrent effects of a residency restrictions law in Minnesota, this study analyzed the offense patterns of every sex offender released from Minnesota correctional facilities between 1990 and 2002 who was reincarcerated for a new sex offense prior to 2006. Given that not one of the 224 sex offenses would have likely been prevented by residency restrictions, the findings from this study provide little support for the notion that such restrictions would significantly reduce sexual recidivism.

Sunday, May 11, 2008

Common Sense

Our power and authority is eroding because of the amounts we are sending abroad for energy…." Link here (NYT) and here (Mother Jones).

The full quote by Sen. Bayh of Indiana:

“In the short run, that they are investing here is good,” Senator Bayh said. “But in the long run it is unsustainable. Our power and authority is eroding because of the amounts we are sending abroad for energy and consumer goods.”

So, why don't we just take the oil and not pay for it? I can't believe how dumb we are.

Friday, May 09, 2008

Convicting Innocents: Numbers

You have got to admit that the Death Penalty, questions of life and death and fairness bring out the extremes in a man. The passion never fails to surprise me, with terms: bloodlust, police state, medieval, and limited government bandied about dripping with sarcasm.

We've all been wanting to know more about exonerations, which is another way of saying wrongful conviction. Here are some numbers, and where they come from: (from comments at Doug's site, link here).

DPIC, which you suggested, has info here:

In the last 5 full years (2003-2007), twenty-four (24!!!!) people have been exonerated. Three have also been exonerated so far in 2008.

The DPIC also states that, since 1973, 129 people have been released from death row with evidence of innocence.

I'm not surprised that your (a blogger named "federalist") bloodlust is based on inaccurate information. Of course, I'm sure you'll claim that you referred to 4 "DNA exonerations" whereas the DPIC stats are for "exonerations," as though there is some great difference. Let me preemptively note that the DPIC has an additional category titled "Released From Death Row (Probable Innocence)" which does not appear to be included among the numbers I gave. So whether from DNA evidence or something else, the 24 listed exonerees had more than "probable innocence."

A follow up comment shining more light on the subject:

Here are the standards for making it on DPIC's list of "exonerations," the list that shows 24 people in the last 5 full years, as I mentioned above.

For Inclusion on DPIC's Innocence List:
Defendants must have been convicted, sentenced to death and subsequently either-
a) their conviction was overturned AND
i) they were acquitted at re-trial or
ii) all charges were dropped
b) they were given an absolute pardon by the governor based on new evidence of innocence.

I can only guess that you will pound the table about (a)(ii), claiming such cases aren't "real" exonerations or something. But I would suggest prosecutors don't dismiss charges lightly and I cannot fathom any reasonable explanation not to include such people as exonerees.

I mean, I can predict a rant against, say, the exclusionary rule, arguing that *maybe* one of these cases involved dropped charges after a state post-conviction court found key evidence should have been suppressed [do recall that federal courts cannot grant a habeas petition on fourth amendment grounds], but such an argument only reveals a desire for a police state where the authorities should be able to ransack our homes. Such constraints on our liberty would merely be the price we pay for making sure that the police catch all wrong-doers and are not deterred from finding them using any means. We must protect the children, after all.


RE: DNA - I think it behooves us to remember the Dallas prosecutor's office of 1970s and early 80s. (AKA "The reason why so much case law ends in Dretke") We know how bad they were in part because they were the only (or one of the only? I'm relying on newspapers here) offices to keep evidence from which DNA could be collected.

Dallas News carries an ap report on that round table debate on wrongful convictions in Texas.

Age of Regression?

In this curious ruling Judge Brownback relies upon the Last in Time Rule, dating from Chinese Exclusion Cases, 1889, to support MCA jurisdiction to try Kadr, a child soldier from Afghanistan pressed into service by AQ. The defense, and forces of the enlightenment, argue that current treaty and international law obligations prevent such jurisdiction over juveniles (brief available at link, thanks to Scotusblog).

Perhaps we should simply go back to utilizing the cat at the main and get this over with.

Wars can always be relied upon to provide a diversion for our excesses, precious material, manpower, and judicial resources as well. Will the twenty-first century be known as the Age of Regression?

Monday, May 05, 2008

Wrongful Convictions: Sixty Minutes

Here is something to catch up on, if you missed it (I was at my daughter's swim club banquet--could not miss the good prime and mousse): The Sixty Minutes special on Texas's exonerations investigations.

Moral Panic

Over at Doug's blog, the latest in the saga of sex offender panic, and extra reading about this puritanical phenomenon:

"Moral Panic," by Philip Jenkins. Essentially a history of sex offenders in modern America. Also Carl Sagan's "The Demon-Haunted World," which has excellent chapters on the "satanic ritual abuse" fever that gripped the nation for a decade or more. Opened my eyes to the historical realities as much as Mike Gray's "Drug Crazy" did for the drug war when I was in high school.

Additionally, here is a post regarding our swollen prison population and which political party/politicians are responsible.

Sunday, May 04, 2008

Unconstitutional Tool: Terrorism Again

Designations (Annals of Surveillance, New Yorker) amount to a kind of economic embargo: anyone who does business with a designated person risks criminal or civil penalties. The Treasury Department can act more quickly than the police or the F.B.I., who may take action only after an investigation. By preĆ«mptively freezing a suspect’s assets, “the government does not have to watch these dollars continue to flow over a period of months or years as it investigates whether it will pursue criminal charges,” a department spokesman, Andrew DeSouza, told me.

Authorities also need less evidence for a designation than they would for prosecution, and they can rely on evidence that would not be admissible in a criminal trial. Matthew Levitt, who until last year was deputy assistant secretary for intelligence and analysis at the Treasury Department, says that designations involve “an extremely robust process. This is not something that can be done easily or willy-nilly.” But Lormel, who retired from the F.B.I. in 2003, says he would have been “hard pressed” to act on some of the material that Treasury officials used. “Oftentimes, I think they base their evidence on media stories or public-source information, whereas we would never use only that,” he told me.

In addition, the Treasury Department may use classified evidence that is never disclosed to the designated party, despite an established principle of the American legal system that the accused should have an opportunity to confront evidence against him. Designations can be challenged before a federal judge, but lawyers for the designated party are not shown all the government’s evidence and cannot introduce their own. Nearly five hundred individuals and groups have been labelled Specially Designated Global Terrorists since 2001; there has never been a successful challenge in court. A designation “effectively denies people province over their own property in a largely unreviewable way,” Aufhauser, the department’s former general counsel, told me. “Such an extraordinary power needs to be exercised with discretion, because it could be constitutionally suspect.”